State of Minnesota, Respondent, vs. Paul J. Wrobleski, Appellant.

State of Minnesota, Respondent, vs. Paul J. Wrobleski, Appellant. A04-1493, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1493

 

 

State of Minnesota,

Respondent,

 

vs.

 

Paul J. Wrobleski,

Appellant.

 

 

Filed August 23, 2005

Affirmed in part, reversed in part, and remanded
Forsberg, Judge*

 

McLeod County District Court

File No. K7-03-1315

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Michael K. Junge, McLeod County Attorney, Mark Metz, Assistant County Attorney, 830 East Eleventh Street, Suite 112, Glencoe, MN  55336 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            On appeal from his conviction of first-degree implied consent testing refusal, appellant asserts that (1) his conviction should be vacated because first-degree implied consent testing refusal is not statutorily defined as an offense and (2) the imposition of a public defender co-payment violates his right to counsel.  We affirm in part, reverse in part, and remand.

FACTS

            Based on events from the afternoon of September 26, 2003, appellant Paul Wrobleski was charged with one count of driving while impaired and one count of implied consent testing refusal.  Minn. Stat. §§ 169 A. 20, subds. 1, 2 (2002 & Supp. 2003), .24, subd. 1 (2002).  Appellant was acquitted of driving while impaired and convicted of test refusal.  The district court sentenced appellant to 54 months' imprisonment.  This appeal followed.

D E C I S I O N

            I.          First-Degree Implied Consent Testing Refusal

 

            Appellant argues that first-degree implied consent testing refusal is not statutorily defined as an offense.  He therefore requests that his conviction be modified to second-degree implied consent testing refusal, a gross misdemeanor, and that his sentence be reduced accordingly.  Statutory interpretation presents a question of law, which we review de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

            Following substantial revisions by the legislature in 2000, the offenses of driving while impaired and implied consent testing refusal were redrafted and codified in Minn. Stat. ch. 169A.  2000 Minn. Laws ch. 478, art. 1, § 7.  This new statutory scheme provided two base offenses:  (1) driving while impaired, and (2) implied consent testing refusal, as follows:

169A.20  DRIVING WHILE IMPAIRED.

 

Subdivision 1.  Driving while impaired crime.  It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:

 

            (1) when the person is under the influence of alcohol;

 

                         . . . .

 

Subd. 2.  Refusal to submit to chemical test crime.  It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169 A. 52 (test refusal or failure; revocation of license).

 

Minn. Stat. § 169 A. 20, subds. 1, 2 (2000).

            Although this statute defined two separate base offenses, it further provided that both were punishable as first-, second-, or third-degree driving while impaired.  Id., subd. 3 (2000).  The degree of the offense depended on the number of aggravating factors, and the sanction was identical regardless of whether the base offense was driving while impaired or implied consent testing refusal.  See Minn. Stat. §§ 169 A. 20, subd. 3, .25, .26, .27 (2000).  The following statute, which defined first-degree driving while impaired as a gross misdemeanor, is representative of the sanction provisions:

169A.25  FIRST-DEGREE DRIVING WHILE IMPAIRED.

 

Subdivision 1.  Degree described.  A person who violates section 169 A. 20 (driving while impaired) is guilty of first-degree driving while impaired if two or more aggravating factors were present when the violation was committed.

 

Subd. 2.  Criminal penalty.  First-degree driving while impaired is a gross misdemeanor.

 

Minn. Stat. § 169 A. 25.

            In 2001, the legislature created a felony sanction for driving while impaired.  The preexisting first-, second-, and third-degree sanctions were redefined as second-, third-, and fourth-degree, respectively.  2001 Minn. Laws 1st Spec. Sess. ch. 8, art. 11, §§ 3-6.  Thus, the text recited above for first-degree driving while impaired was unchanged, except that "second-degree" was substituted for "first-degree."  Minn. Stat. § 169 A. 25 (Supp. 2001).  The newly enacted first-degree sanction provided:

169 A. 24 FIRST-DEGREE DRIVING WHILE IMPAIRED.

 

Subdivision 1.  Degree described.  A person who violates section 169 A. 20 (driving while impaired) is guilty of first-degree driving while impaired if the person:

 

            (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents; or

 

            (2) has previously been convicted of a felony under this section.

 

Subd. 2.  Criminal penalty.  A person who commits first-degree driving while impaired is guilty of a felony . . . .

 

Minn. Stat. § 169 A. 24 (Supp. 2001).

            In 2003, the legislature altered this scheme by setting out separate sanctions for driving while impaired and implied consent testing refusal.  2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, §§ 4-6.  The text for the first-degree felony sanction was not disturbed.  Minn. Stat. § 169 A. 24 (2002 & Supp. 2003).  The separate sanctions for driving while impaired and implied consent testing refusal are illustrated by the amended second-degree offense statute.

169 A. 25 SECOND-DEGREE DRIVING WHILE IMPAIRED.

 

            Subdivision 1.  Degree described.  (a) A person who violates section 169 A. 20, subdivision 1 (driving while impaired crime), is guilty of second-degree driving while impaired if two or more aggravating factors were present when the violation was committed.

 

            (b) A person who violates section 169 A. 20, subdivision 2 (refusal to submit to chemical test crime), is guilty of second-degree driving while impaired if one aggravating factor was present when the violation was committed.

 

Minn. Stat. § 169 A. 25, subd. 1 (Supp. 2003).  Corresponding changes were made to the third-degree sanction.  Minn. Stat. § 169 A. 26, subd. 1 (Supp. 2003).  The result was that the sanctions for implied consent testing refusal would generally be more severe than for driving while impaired.

Appellant observes that, when the legislature amended the sanctions for second- and third-degree driving while impaired in 2003, it set out separate sanctions for driving while impaired and implied consent testing refusal.  Appellant then argues that, because first-degree driving while impaired does not set out separate sanctions and does not mention implied consent testing refusal, implied consent testing refusal is not punishable as first-degree felony driving while impaired.

            When presented with an issue of statutory interpretation, our object is to give effect to the intention of the legislature.  Minn. Stat. § 645.16 (2002); State v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003).  If the words of a statute are not reasonably susceptible of more than one meaning, we interpret the statute in accordance with its plain language.  Minn. Stat. § 645.08 (2002); State v. Anderson, 683 N.W.2d 818, 821-22 (Minn. 2004).

            Here, the intention of the legislature is further signaled by two statutes that control statutory construction.  Minn. Stat. § 645.49 (2002) generally provides that, "the headnotes printed in boldface type before sections and subdivisions in editions of Minnesota Statutes are mere catchwords to indicate the contents of the section or subdivision and are not part of the statute."  With respect to the offenses of driving while impaired and implied consent testing refusal, Minn. Stat. § 169 A. 05 (2002) also provides that "[w]ords set forth in parentheses after references to sections or subdivisions in this chapter are mere catchwords included solely for convenience in reference.  They are not substantive and may not be used to construe or limit the meaning of any statutory language."

            When parentheticals are omitted in accordance with this provision, the text for first-degree driving while impaired provides in relevant part that "[a] person who violates section 169 A. 20 . . . is guilty of first-degree driving while impaired[.]"  Minn. Stat. § 169 A. 24 (2002) (emphasis added).  By comparison, the text for second-degree driving while impaired provides in relevant part that "[a] person who violates section 169 A. 20, subdivision 1 . . . is guilty of second-degree driving while impaired.  . . .  A person who violates section 169 A. 20, subdivision 2 . . . is guilty of second-degree driving while impaired . . . ."  Minn. Stat. § 169 A. 25 (Supp. 2003) (emphasis added).

            As previously noted, the first and second subdivisions of Minn. Stat. § 169 A. 20, respectively, set out the two separate base offenses of driving while impaired and implied consent testing refusal.  When the text for second-degree driving while impaired refers separately to each subdivision, it states separate sanctions for each base offense.  Because the text for first-degree driving while impaired refers to the entire section, it provides a unitary sanction for each base offense.  The plain language of the statute defining the offense of first-degree driving while impaired, therefore, includes a sanction for the offense of implied consent testing refusal.

            Out analysis is supported by the references in the parentheticals.  When Minn. Stat. § 169 A. 24 refers to "section 169 A. 20 (driving while impaired)," the parenthetical recites the bold headnote for that entire section.  When Minn. Stat. § 169 A. 25 refers to "section 169 A. 20, subdivision 1 (driving while impaired crime)" and "section 169 A. 20, subdivision 2 (refusal to submit to chemical test crime)," the parentheticals recite the bold headnote for each subdivision. 

Because the parentheticals only recite the headnotes, it is reasonable to conclude that the parentheticals are supplied solely for reference.  Furthermore, this interpretation comports with the direction of the legislature that the parentheticals are nonsubstantive and "may not be used to construe or limit the meaning of any statutory language."  Minn. Stat. § 169 A. 05.  Because a plain reading of the statutory language indicates that implied consent testing refusal is punishable as first-degree driving while impaired, we conclude that appellant was properly convicted of this offense.

            2.         Public Defender Co-Payment

            Appellant next asserts that, because the district court imposed a $200 public defender co-payment in violation of his right to counsel, he is entitled to the return of these funds.  Whether a co-payment violates the right to counsel is a question of law, which we review de novo.  State v. Tennin, 674 N.W.2d 403, 406 (Minn. 2004).

            Here, a public defender co-payment was assessed against appellant in accordance with Minn. Stat. § 611.17, subd. 1(c)(1) (2002).  Because this statutory provision does not permit a district court to consider a defendant's ability to pay or permit waiver in cases of financial hardship, the Minnesota Supreme Court concluded that the co-payment violated the right to counsel under the state and federal constitutions.  Tennin, 674 N.W.2d at 410-11.  We therefore reverse the imposition of this payment and remand for a determination of appellant's ability to pay.

            Appellant raises a series of additional arguments in his pro se brief.  After carefully considering these arguments and examining the record of trial, we conclude that he has not stated any further basis for relief.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.